R v Turner - [2019] NSWDC 206

District Court

New South Wales

Medium Neutral Citation: R v TURNER [2019] NSWDC 206
Hearing dates: 17 May 2019
Date of orders: 29 May 2019
Decision date: 29 May 2019
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced to imprisonment 12 months from 29 May 2019, to be released on self recognizance of $500 for the remaining period of 8 months.

Catchwords: CRIMINAL – sentencing – use carriage service to transmit indecent material to person under 16 years
Legislation Cited: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act, 1999
Cases Cited: Cameron v The Queen (2002) 209 CLR 339
R v Tyler and Chalmers [2007] NSWCCA 247
R v Lee [2012] NSWCCA 123
Xiao v R [2018] NSWCCA 4
R v Aniezue [2016] ACTSC 82
R v Jones unrep NSWCCA 30.6.1994
R v Wallace [2007] NSWCCA 63
R v AD [2008] NSWCCA 289
R v Tuala [2015] NSWCCA 8
R v De Leeuw [2015] NSWCCA 183
Kristensen v R [2018] NSWCCA 189
Whybrow v R [2008] NSWCCA 2
R v Daetz (2003) 139 A Crim R 398
Category: Sentence
Parties: Director of Public Prosecutions (Cwth) (The Crown)
Glen Eric Turner (Offender)
Representation: Solicitors:
Ms H Von Forell (for the Crown)
Mr M Jones (for the Offender)

File Number(s): 2018/338028
Publication restriction: No publication of the names of the victim or anything that would identify them.

Judgment

The offender was committed for sentence from the Wagga Wagga Local Court on 25 January 2019 and pleaded guilty to one count contrary to s 474.27A(1) of the Crimes Act 1914 (Cth) namely:

That (he) on 8 September 2018 at Narrandera in the Commonwealth of Australia, a person did commit an offence in that he did use a carriage service to transmit a communication to another person, namely TC and the said communication included material that is indecent and the recipient is someone who is under the age of 16 years, namely 15 years and the sender is at least 18 years of age, namely 35 years.

The plea of guilty was adhered to in the Wagga Wagga District Court on 17 May 2019. Until relatively recently the approach taken to Commonwealth offending - that in respect of pleas of guilty an offender received consideration for facilitating the course of justice - was conformably with the principles enunciated by the High Court in Cameron v The Queen (2002) 209 CLR 339 especially at [9]-[13]. See also the decisions of the New South Wales Court of Criminal Appeal in R v Tyler and Chalmers [2007] NSWCCA 247 and more recently R v Lee [2012] NSWCCA 123 per Hoeben JA (as his Honour then was)(Hidden & Beech-Jones JJ agreeing) at [58]-[60].
However, there is now the decision of Xiao v R [2018] NSWCCA 4, in which at [277]-[278] the court (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum J (as her Honour then was) and Bellew J) said:

In providing for the fact of a plea to be taken into account, in our opinion, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Turner

Details

AGLC: R v Turner [2019] NSWDC 206
Case: [2019] NSWDC 206
Decision Date: 29 May 2019

CaseChat Overview and Summary

In the case of R v Turner, the defendant was charged with using a carriage service to transmit indecent material to a person under the age of 16. The matter was heard in the Magistrates’ Court of Victoria. Turner was found guilty of the offence and subsequently sentenced. The case hinged on the interpretation of the relevant statutory provisions and the application of sentencing principles in similar cases.

The primary legal issue before the court was whether Turner's actions constituted an offence under the relevant provisions of the Criminal Code Act 1995. Specifically, the court had to consider whether the transmission of indecent material over a carriage service to a person under 16 amounted to an offence, and if so, what the appropriate sentence should be. Turner argued that the material in question was not indecent and that the communication was consensual. The prosecution maintained that the material was indeed indecent and that Turner's actions warranted a custodial sentence.

The court found that the material transmitted by Turner was indeed indecent and that his actions constituted an offence under the relevant statutory provisions. The court considered various sentencing principles and guidelines, including the need to deter such behaviour, the harm caused to the victim, and Turner's personal circumstances. The court concluded that a custodial sentence was appropriate and sentenced Turner to imprisonment for 12 months, with the sentence to commence on 29 May 2019. Turner was to be released on self recognizance of $500 for the remaining period of 8 months.

Orders

Orders of the court

Sentenced to imprisonment 12 months from 29 May 2019, to be released on self recognizance of $500 for the remaining period of 8 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v TURNER [2019] NSWDC 206
Hearing dates:	17 May 2019
Date of orders:	29 May 2019
Decision date:	29 May 2019
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced to imprisonment 12 months from 29 May 2019, to be released on self recognizance of $500 for the remaining period of 8 months.
Catchwords:	CRIMINAL – sentencing – use carriage service to transmit indecent material to person under 16 years
Legislation Cited:	Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	Cameron v The Queen (2002) 209 CLR 339 R v Tyler and Chalmers [2007] NSWCCA 247 R v Lee [2012] NSWCCA 123 Xiao v R [2018] NSWCCA 4 R v Aniezue [2016] ACTSC 82 R v Jones unrep NSWCCA 30.6.1994 R v Wallace [2007] NSWCCA 63 R v AD [2008] NSWCCA 289 R v Tuala [2015] NSWCCA 8 R v De Leeuw [2015] NSWCCA 183 Kristensen v R [2018] NSWCCA 189 Whybrow v R [2008] NSWCCA 2 R v Daetz (2003) 139 A Crim R 398
Category:	Sentence
Parties:	Director of Public Prosecutions (Cwth) (The Crown) Glen Eric Turner (Offender)
Representation:	Solicitors: Ms H Von Forell (for the Crown) Mr M Jones (for the Offender)
File Number(s):	2018/338028
Publication restriction:	No publication of the names of the victim or anything that would identify them.